Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 156

P834/15

OPINION OF LORD KINCLAVEN

In the cause

LM (AP)

Petitioner

against

CRIMINAL INJURIES COMPENSATION AUTHORITY

Respondent

 

Petitioner:  Sutherland;  Drummond Miller LLP

Respondent:  Komorowski;  Office of the Advocate General

8 November 2016

Introduction

[1]        This is a petition seeking judicial review of a decision of a First-tier Tribunal dated 8 October 2014 to refuse to waive the two year time limit applicable to the making of applications under the Criminal Injuries Compensation Scheme 2008.  The respondent is the Criminal Injuries Compensation Authority.  In terms of the Criminal Injuries Compensation Act 1995, the respondent is responsible for the administration of the Scheme, which provides that:

“18.     An application for compensation under this Scheme in respect of a criminal injury…should be made as soon as possible after the incident giving rise to the injury and must be received by the [respondent] within two years of the date of the incident.  A claims officer may waive this time limit only where he or she considers that:

 

1. it is practicable for the application to be considered; and
2. in the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period.

 

19.       (1) It will be for the applicant to make out his or her case including, where appropriate:

 

(a) making out the case for a waiver of the time limit in paragraph 18…”

 

[2]        Guidance on the application of paragraph 18, in the face of conflicting authority, is given by a three-judge panel of the Upper Tribunal in MJ v First-tier Tribunal and Criminal Injuries Compensation Authority (No 3) [2015] AACR 3 relied upon by the petitioner.  In short, paragraph 18 embodies a power, not a duty, to waive the two year time limit, where conditions (a) and (b) are satisfied, and there would have to be good reasons to justify not exercising the discretion in the applicant’s favour where those conditions are satisfied (paras 33 and 34).  Those reasons must be set out, but an example might be where a claim has been made very late and there is no good reason for the delay (para 34).  The relevant date is that of the incident giving rise to the application (cf JM v Advocate General for Scotland [2013] CSOH 169, 2014 SLT 475).

[3]        In the present case, the petitioner made two applications under the 2008 Scheme on or about 20 August 2010.  One application related to a domestic assault in 1976 (application G/10/238864), with which these petition proceedings are concerned.  The other application was in respect of an apparently unrelated alleged gang assault in 1989 (application G/10/238896).  The disposal of that other application is not the subject of challenge.

[4]        Both applications were refused by the respondent on 29 August 2011.  Reviews of both decisions were unsuccessful in terms of decision letters dated 13 May 2013.  Appeals against both decisions were also unsuccessful following a hearing before the First-tier Tribunal (“the Tribunal”) on 8 October 2014.  A handwritten note of the reasons for refusal of the appeals, appended to the final decision notice, was made on the day of the appeal hearing (“the original reasons”).  A full statement of written reasons dated 30 June 2015 was subsequently issued by the Tribunal (“the later reasons”), apparently after the raising of these proceedings. 

[5]        In refusing the appeal, with regard to the application now at issue, the Tribunal considered that paragraph 18(a) of the 2008 Scheme had been met, but that paragraph 18(b) was not satisfied.  Accordingly, the petitioner’s application was “time-barred” as both sub-heads (a) and (b) required to be satisfied “as conditions precedent to the exercise of the discretion to waive the time-limit” (the original reasons, p 5). 

[6]        The petitioner seeks reduction of the decision to refuse the appeal on the grounds that the Tribunal erred in law, by misdirecting itself as to the relevant issue to be determined, by failing to take all relevant factual material into account and to give proper and adequate reasons for its decision (petitioner’s pleas-in-law nos 1 and 2), and by “having made a material error of fact” (petitioner’s plea-in-law no 3). 

[7]        The respondent contends primarily that, no material error of law having been disclosed, the petition should be refused (respondent’s plea-in-law no 2), which failing the petitioner’s averments in relation to the evidence (infra) should be excluded from probation on the basis that the Tribunal’s narration is determinative in the absence of agreement between the parties to the contrary (respondent’s plea-in-law no 1).

[8]        The case came before me for a first hearing.

 

Relevant factual background
[9]        The factual background is set out fully in the petition.  The petitioner was born on 15 April 1959.  On the night of 4 November 1976, she was seriously assaulted in her home by her then boyfriend (BT) who tried to strangle her.  Between the date of the assault and the date of the trial, it is further averred that BT was seen following the petitioner.  He was charged with attempted murder and, on 9 December 1976 at Glasgow District Court, he pled guilty to breach of the peace and assault.  He received a two year deferred sentence conditional on admission to Stobhill Hospital for inpatient treatment for alcoholism.  He was also interdicted from approaching the petitioner, although there is some dispute between the parties as to precisely how the interdict came about. 

[10]      The petitioner contends that she suffered “significant physical and psychological injuries” as a consequence of the assault.  In addition to bruising sustained during the attack, she subsequently suffered from palpitations, hair loss, guilt, agoraphobia, anxiety and depression.  She struggled with day-to-day activities “for weeks after the attack”.  It is further averred that the petitioner’s parents told her that she should never mention the incident.  They had never approved of her boyfriend and appeared to the petitioner to take the view that she had brought the assault upon herself.  The petitioner did not talk about the assault and its impact on her, and she tried to put the incident behind her. 

[11]      Following the incident, and after leaving school, the petitioner studied for a year at college where she obtained four Higher level education certificates.  She then studied English at Glasgow University and obtained an MA Honours degree.  She worked as a writer, and had a series of tutoring and writing posts.  In 1988, the petitioner was diagnosed as suffering from ME.  The following year, the alleged gang assault (supra) on the petitioner is said to have taken place.  It is averred that the petitioner was assaulted by a gang of unidentified persons in a car park whilst on her way home from work at an evening class.  She was threatened with kidnap and rape.  She was eventually freed following discovery and intervention by some local Neighbourhood Watch members.  The petitioner’s reaction to this incident is said to have been “heightened by her existing psychological problems”.  Further, in July 1995, the petitioner received a head injury in an accident, apparently causing concussion and whiplash. 

[12]      Following that incident, it is averred that the petitioner complained of being unable to concentrate, poor sleep and experiencing panic attacks.  She had symptoms of depression and was referred to Professor Sir Michael Bond.  In 1997, she was treated by her GP for anxiety and depression.  In March 1998, she was assessed by a Community Psychiatric Nurse.  Between November 1998 and July 2005, she was assessed by a clinical psychologist and received treatment at Leverndale Hospital over 4 separate periods of time. 

[13]      Between 2006 and 2010, the petitioner studied for an honours degree in law at Strathclyde University, although it is said that most of her studies were carried out from home.  Throughout this time, it is averred that the petitioner continued to have symptoms of anxiety and depression and received treatment from her GP, community medical services and the University medical service.

[14]      Finally, on or about 20 August 2010, the petitioner submitted two applications (supra) to the respondent for criminal injuries compensation under the 2008 Scheme.    

 

The application (G/10/238864)
[15]      The application at issue (6/2 of process) discloses the petitioner’s reasons for seeking compensation more than two years after the incident as follows:

“I was young at the time of the incident.  I felt guilty & ashamed about what had happened.  My parents didn’t like my boyfriend, they said I shouldn’t discuss this incident with anyone.  I had to forget about it.”

 

[16]      A covering letter from the petitioner’s legal representatives further explains that:

“The applicant struggled to cope following this incident.  She says that she lost five years of her life, as she wasn’t able to start university until five years later.  She continues to suffer from depression, anxiety, agoraphobia and palpitations.

 

A further incident in 1989 exacerbated her mental ill health… 

 

As you will see, the two year time limit has expired.  Given the mental ill health suffered as a result of this incident, however, it is our client’s position that it is in the interests of justice that an application be considered.”

 

The application itself states that the petitioner had received treatment for injuries, said to include “depression, anxiety, guilt, and agoraphobic (sic)”, and that she continued to receive treatment in respect of “depression, anxiety, agoraphobia, palpitations, serious mental health issues”. 

[17]      On 29 August 2011, the respondent refused the petitioner’s application in terms of paragraph 18 (supra) on the grounds that:

“Strathclyde Police have confirmed that due to the passage of time, they have no record of this incident.  As such, there is insufficient evidence to corroborate the circumstances surrounding this incident, and it is not practicable to consider this application.”

 

[18]      On 13 May 2013, following the petitioner’s request for review, the respondent maintained that:

“Although it may not be reasonable to expect an application to have been made sooner, given the [petitioner’s] condition, the police have informed us that they have no record of the incident due to the passage of time.  On several occasions you advised us you would be providing further information in support of their claim but have failed to do so.  In the absence of any supporting police evidence it would be impracticable to waive the time limit.”

 

[19]      The petitioner’s subsequent notice of appeal contended that “there is indeed enough evidence to establish what happened.  My statement is clear and credible.  I told treating psychiatrists about it who found me credible…”  Excerpt medical records accompanied the notice of appeal. 

[20]      On 7 November 2013, the Tribunal considered that the appeal should be considered at an oral hearing, and directed the petitioner to provide “a signed, detailed statement setting out her case in relation to the late submission of the applications”.  It was expressly noted (directions notice, para 7) that the statement “should deal with [the petitioner’s] knowledge of the existence of the Scheme, her state of health and mind since the incident occurred, why she did not make her applications earlier, when she first sought legal advice, and how it came about that she made applications when she did”. 

[21]      The petitioner provided a statement, dated 17 June 2014 (6/9 of process), which refers to her mental health problems being detailed in medical records lodged with the respondent and, in relation to the circumstances of the making of her application, explains that:

“…the approach adopted by people who are closest to me meant that I did not take any action about Criminal Injuries Compensation.  Those who were closest to me (and indeed the police) never mentioned Criminal Injuries Compensation to me and, in any event as above indicated the pressure was on me to avoid any mention of the matter in the first place.

 

Whilst I was able to function in many ways after the incident there was a developing mental health problem as a result.”

 

The petitioner’s account of being told by her mother never to mention the incident, and her associated feelings of guilt, were said to be corroborated by earlier accounts given by the petitioner to her psychiatrist, Dr Jacqueline Anderson. 

[22]      The petitioner does not explain in her statement when it was that she became aware of the criminal injuries compensation scheme.  She refers only to having obtained assistance from “a number of medical advisers”, including Dr Anderson, as a result of which it is said by the petitioner that:

“Very generally as a result of the greater insights obtained, I felt stronger and thus able to submit the Criminal Injuries Compensation Applications though late.”

 

Report of Dr Anderson
[23]      Before the Tribunal, the petitioner produced a psychiatric report prepared by Dr Anderson, Consultant Psychiatrist, dated 29 June 2014.  Dr Anderson’s report notes that she had previously met with the petitioner as a psychiatric advisor within the student health service of Strathclyde University.  Dr Anderson notes the petitioner’s “past psychiatric history” dating from 1988, albeit that the only entries pre-dating 1995 were her diagnoses of ME (1988) and delayed grief reaction after the death of her father (1992).  Treatment for anxiety and depression is noted from 1997.  The petitioner may have first come into contact with Dr Anderson after November 2007, when she first attended the student health service.  The petitioner first disclosed the incident to her in November 2009.  Dr Anderson also had access to copies of the petitioner’s GP medical records. 

[24]      Dr Anderson’s report concludes (p 9) as follows:

“It is my opinion that [the petitioner’s] symptoms and psychiatric conditions did undoubtedly compromise her ability to seek support and to claim Criminal Injuries Compensation.  Combined with her own lack of confidence and self-worth she was unable to come forward to discuss the emotional consequences of the events until relatively recently.  It is my opinion that with the increased understanding of the antecedents and maintaining factors in her condition, and not withstanding (sic) the support she has consistently had from a close friend and from her General Practitioner, and to an extent myself, she has felt empowered enough to now make an application for Criminal Injuries Compensation.”

 

Dr Anderson provides no more specific response to the particular question posed by the petitioner’s legal representatives, viz. “In particular at what point did her condition improve to such an extent that she was better able to take action upon her own behalf by, among other things, applying for Criminal Injuries Compensation?”

 

The original reasons
[25]      The original reasons for the Tribunal’s decision to refuse the appeal record that, in relation to sub-head (b) of paragraph 18, the Tribunal (p 1)

“considered especially the years immediately following each incident.  A period of about five years was considered especially relevant.  In relation to the 1976 incident when the [petitioner] was only 17 it certainly seemed inappropriate to restrict our scrutiny to two years.  In any event and in view of the evidence an ‘extended’ view was taken and we considered all the ‘life events’ affecting the [petitioner] subsequently.”

 

[26]      The Tribunal notes that the petitioner had initially “felt inhibited from discussing” the incident, and considers the petitioner’s employment and education history, noting that her working career had continued until she suffered a head injury in an unrelated accident in 1995.  In particular, the Tribunal observed (p 2) that:

“It seemed that it was this factor which gave rise to her subsequent mental health difficulties, which are not noted (at least in significant form) in her earlier personal and medical history…  Notwithstanding she was able to instruct a solicitor to sue a local authority as being responsible for the accident… 

 

While she had certain mental health problems since 1995 she was sufficiently motivated some years later to undertake a Law Degree with honours at Strathclyde, graduating in 2010.

 

We noted as significant that [the petitioner’s] mental health difficulties dated only from 1995, the accident, which occurred some 5/6 years after the 1989 attack.  Also she described herself at 21 as being ‘pretty savvy’ and considered that she would have known of the CIC Scheme.  In reply to her solicitor she conceded that, had she known of the Scheme, she was uncertain whether she would have claimed.  Making a CIC claim would have meant discussing the circumstances of the claims with Third Parties, she explained, which she was reluctant to do.”

 

[27]      The Tribunal concluded (p 3) that:

“On any view [the petitioner’s] mental health problems (in serious form), did not arise until 1995, long after the second incident.  She is an intelligent and resourceful individual.  She had the support of her brother, a solicitor with inevitably knowledge of the CIC Scheme.  She was able to consult a solicitor after her accident in 1995 and successfully pursued a claim.  She was able to seek an interdict against BT for molesting her earlier [i.e. the 1976 incident].  She was able to continue working after each incident.  All of this convinces us that it was eminently reasonable to lodge a claim within two years of each incident (or of majority in relation to the 1976 incident).  Claims were not made until 2010.  On any view they should have been made much earlier.  In the years immediately following each incident the [petitioner] was functioning at a high level.”

 

[28]      The respondent expressly noted the decisions in MJ (supra).

 

The later reasons
[29]      The later reasons (apparently incorrectly referring to the appeal hearing as having taken place on 10 October 2014) explain that the decision notice issued to parties “confirmed” the oral reasons provided at the appeal hearing.  The later reasons further clarify (para 6) that:

“…the particular issue for the Tribunal to decide was whether or not in terms of para 18(b) it would have been reasonable to expect the [petitioner] to have made an application within the two-year period.  (A copy conviction was available as at the date of the hearing, and accordingly it was considered practicable to investigate the matter as required under para 18(a).)”

 

[30]      With regard to the petitioner’s oral evidence, the Tribunal notes (para 10) that she “accepted that her mental health difficulties dated only from about 1995 when she stopped working” and (para 11) “claimed that she only became fully aware of Criminal Injuries Compensation after attending a conference” organised by her current legal representatives.  She accepted (ibid) that her brother, with whom she was close and who was aware of both incidents, would also have been aware of the scheme. 

[31]      In addition, it was noted that the petitioner’s representative “relied heavily” (para 14) on the report of Dr Anderson, in particular paragraph 2, which gives the petitioner’s current description of her symptoms, on the basis of which Dr Anderson suggests a diagnosis of Post Traumatic Stress Disorder.  It was submitted that both incidents had caused the petitioner mental health difficulties and a sense of deep shame and guilt.  It was also said (ibid) that this had “adversely affected her memory” (although quantum valeat, Dr Anderson observed (p 7) that the petitioner’s short and long term memory for events appeared to be reasonable). 

[32]      Inter alia the Tribunal made (para 15) the following findings in fact:

“(iii) In the particular circumstances of these cases, it would have been reasonable to expect the [petitioner] to have made an application within two years of each respective incident.  The [petitioner’s] mental health difficulties did not arise until after the unrelated accident in 1995.  In the years following each of the relevant incidents the [petitioner] was functioning at a high intellectual level.

 

(iv) The [petitioner’s] brother [was] a criminal lawyer with expertise in both prosecution and defence matters.  The [petitioner] had regular contact with him at about the time of each incident and in the years following.  He was aware of both incidents.  He had at the material time a close and supportive relationship with the [petitioner].”

 

[33]      The Tribunal elaborated upon its reasoning (para 18) in the following terms:

“We consider that the [petitioner] should reasonably have made her applications within the two years subsequent to each incident.  The [petitioner] was then working regularly and/or studying and functioning at a high intellectual and social level.  She was in regular contact with her brother, a criminal solicitor, experienced in both prosecution and defence work, and (inevitably) likely to be familiar with Criminal Injuries Compensation.  In relation to the 1976 incident which occurred when the [petitioner] was aged 17 ½, even if as a matter of discretion it were reasonable to extend the 2 year time limit by about six months, the present application would still be too late.  Tellingly the [petitioner] conceded that as at 21 she was ‘pretty savvy’ and likely to have been aware of the Scheme for compensation herself.  We note that she obtained an interdict against her ex-partner from stalking her after the 1976 incident.  This involved a police report and a court process.  The evidence of mental injury seems to date only from about 1995 after she hit her head on a road sign.  She was even then able to instruct solicitors and sue the local authority successfully.  Later she completed a Law Degree and contemplated undertaking research for a PhD.

 

19. Accordingly in our view the requirements of para 18(b) are not satisfied…”

 

The Tribunal’s characterisation of the evidence
[34]      At the hearing before me, the petitioner took issue with various aspects of the Tribunal’s characterisation (in the later reasons) of the evidence adduced at the appeal hearing.  It is convenient to deal with such issues, and the respondent’s replies, at this stage.

[35]      In particular, the later reasons record (para 8, lines 4-6) that:

“So far as she could recollect [the petitioner] may have seen her General Practitioner about the affects of the incident but did not consult any specialists”. 

 

Before me, it was submitted that, whilst she had said that she may have seen her GP, the petitioner had gone on to state, “I doubt I would have mentioned it to my GP”.  This is denied by the respondent. 

[36]      The later reasons record (para 8, lines 6 – 8) that:

“[The petitioner] was not off work as a result of the incident.  At that time she had worked variously in a Pharmacy and a solicitor’s office.’ 

 

Before me, it was submitted that, whilst the petitioner’s account may not have been clear initially, she had subsequently stated that she left school at 16 and then worked for a year at a chemist/pharmacist; that she then went to college aged 17 but had to drop out; that she then worked full time but then went back to college at age 20.  She had not been working at the time of the incident.  The respondent admits that the petitioner gave such evidence, or evidence substantially to that effect.

[37]      The later reasons record (para 8, lines 10 – 12) that:

“[The petitioner] explained that the alleged offender had stalked her after the 1976 incident.  She had obtained a court interdict against him in relation to this.” 

 

Before me, it was submitted that, in her evidence, the petitioner had said that she had to have the assistance of a police officer due to BT stalking her, and that there was an interdict against him.  However, she had not said that she had obtained the interdict herself, and the respondent had not asked any further questions.  The petitioner did not obtain an interdict against BT.  The respondent admits that the petitioner gave evidence in the suggested terms in relation to the interdict and the lack of further questioning only. 

[38]      The later reasons record (para 8, lines 12-14) that:

“The [petitioner] conceded frankly that by 21 she was ‘pretty savvy’ and probably would have known of Criminal Injuries Compensation.” 

 

Before me, the petitioner submitted that what had actually been said was that,

“by the time I was 20 or 21 I can’t imagine that I would not have known about it.  However, I was still deeply ashamed and mortified that I brought the attack upon myself.  It was hard to shake something that has taken root.  My brother should have advised me properly.”

 

The respondent admits that the petitioner gave such evidence, or evidence substantially to that effect, aside from the final remark in relation to her brother.  Nonetheless, it was submitted that the petitioner had also given evidence that she was “pretty savvy” and probably would have known of criminal injuries compensation, as is recorded in the later reasons.

[39]      The later reasons record (para 10, lines 1-3) that: 

“The [petitioner] accepted that her mental health difficulties dated only from about 1995 when she stopped working.  She had suffered with a head injury after bumping into a road sign.” 

 

Before me, the petitioner submitted that she had not accepted or conceded that her health difficulties dated only from 1995, or that they were causally related to bumping her head on a road sign in 1995.  She had told the Tribunal that she stopped working in 1995, and that when she stopped working in 1995 she had only been working a couple of hours a week.  She had said that she had “gone very downhill” at that point, and had become very agoraphobic.  She had not said that she did not have any mental health difficulties before that.  In response to questioning by the Tribunal about the 1995 accident having triggered her mental health issues, the petitioner had explained that the assault in 1976 “had become unblocked” after the alleged gang assault in 1989.  She gave evidence that she had “really sunk quite low” between 1989 and 1995.  She had been upset a lot and had needed cognitive behavioural therapy.  She had been “doing quite well” in the mid-1990s, doing creative writing and gaining a fellowship, and by 1995 she had been “starting to get herself back on track”.  The respondent admits that the petitioner gave such evidence, or evidence substantially to that effect.

[40]      The later reasons record (para 10, lines 4 – 5) that:

“[The petitioner] had undertaken a law degree, graduating in about 2010.” 

 

Before me, it was submitted that, when questioned about her law degree, the petitioner had also said,

“I was feeling suicidal at this point, crazed with tiredness.  I had appalling nightmares and flashbacks of black clothes and hair and a denim shirt and blood.  I only survived by smashing an ashtray on his head.  The blood was his.  My mum’s livingroom had to be redecorated.  BT came off worse.”

 

This is denied by the respondent.

[41]      The later reasons record (para 11, lines 3 – 5) that:

“[The petitioner] did accept that her [late] brother, who was aware of both incidents and who was close to her, would have been aware of the scheme.” 

 

Before me, it was submitted that the petitioner had also said immediately afterwards that there had been an unspoken assumption within her family that bringing any attention to the assault was out of the question.  She had brought shame on her family, and had gone against her parent’s wishes regarding her relationship with BT.  The respondent admits that the petitioner gave such evidence, or evidence substantially to that effect.  The petitioner submitted that her evidence about her shame and her family’s disapproval, and her reasons for not wanting to discuss matters with third parties, had not been properly addressed by the Tribunal, despite having been raised by the petitioner and her representative on a number of occasions.   

[42]      Finally, whereas the later reasons refer (para 14, lines 4 – 6) to the petitioner’s representative relying heavily on Dr. Anderson’s report, in particular paragraph 2 thereof, particular reference had also been made to paragraph 4 of the report (p 9, supra) and to further passages of the petitioner’s medical records in relation to her mental health.  The respondent believed this to be true.

 

Submissions for the petitioner
[43]      The petitioner submitted that, in the circumstances, the question for the Tribunal was whether the petitioner had suffered from a psychological or psychiatric injury which prevented her from making an application for compensation any earlier than she had.  The fact that the petitioner had been able to function successfully in respect of other aspects of her life did not automatically mean that it would have been reasonable for her to make an application for criminal injuries compensation. 

[44]      In any event, the Tribunal had failed to take into account the clear difficulties experienced by the petitioner, and had been mistaken about her ability to work and the amount of time she had spent working.  The Tribunal had ignored evidence that the petitioner had found studying extremely stressful and that she was taking medication (Tribunal bundle, page C6; Dr Anderson’s Report, pages 4 – 5). 

[45]      The Tribunal had further erred in law by making a number of factual errors and by failing to take into account all the relevant evidential material before it.  The papers before the Tribunal had included various medical reports and copy medical records.  In a Report dated 17 November 1997, Professor Bond drew attention (Tribunal bundle, page C111) to the petitioner’s GP notes, which showed that one month before the accident in 1995, the petitioner had been suffering from emotional problems requiring treatment with an antidepressant for some time before the injury, and that she had a history of palpitations suggesting possible anxiety with somatic symptoms.  The medical records had also contained a letter from the petitioner’s GP dated 10 February 1984 (Tribunal bundle, page C147) which stated that she “suffers from nervous debility and has been under considerable stress in the past few months.  She has consulted me on several occasions about her symptoms.”  Accordingly, it was submitted that the Tribunal had failed to consider the indications in the evidence before it that the petitioner had been so psychologically traumatised as a result of the very serious assault upon her that she had been unable to seek help until many years later.  In deciding that the petitioner had only experienced serious mental health problems after the accident in 1995, the Tribunal had failed to take into account all the relevant factual material before it.  The Tribunal had also failed to give proper and adequate reasons for its decision because it had not addressed the content of Dr Anderson’s report and her conclusions (Wordie Property Company v Secretary of State for Scotland, 1984 SLT 345). 

[46]      There had been no evidence that the petitioner’s brother had in fact advised her to submit a claim for criminal injuries compensation.  In any event, his knowledge of the scheme’s existence was not relevant.  Even if it were, he may well have understood that the petitioner was not psychologically able to make such a claim at the time. 

[47]      The Tribunal was said to have made two further errors, which indicated that it had not properly understood the petitioner’s history.  First, it had been stated more than once that the petitioner had obtained an interdict against BT and that she had complained to the police about him.  This was not correct, as the interdict had been ordered by the court on sentencing.  Accordingly, the petitioner had not been proactive in the manner suggested.  This had clearly been a relevant and material factor in the Tribunal’s consideration of the petitioner’s ability to have brought an application for compensation earlier.  Secondly, the Tribunal had adopted an inconsistent approach to the question of when the application should have been brought.  At one point, it had been said that a period within 5 years of the assault was particularly relevant.  There was no legal or other basis which supported that proposition.  However, the Tribunal had also said that it was reasonable to have expected the claim to have been lodged within two years of the petitioner reaching the age of majority, which would have been approximately two and a half years after the 1976 assault.  Standing the psychological impact on the petitioner of the assault, together with pressure from her family not to talk about it, there was no rational basis for fixing on a period of two years after reaching the age of majority as the date by which the application should have been made.  The decision of the Tribunal was accordingly unreasonable (Associated Provincial Picture House v Wednesbury Corporation, [1948] 1 KB 223).

 

Submissions for the respondent
[48]      The respondent submitted that the Tribunal had not made any material misdirection as to the relevant issue to be considered.  The Tribunal required to adopt a two stage approach to assessing whether the time limit could or ought to be waived.  Where it was practicable to consider the application (2008 Scheme, para. 18(a)), the first stage required consideration of whether: ‘it would not have been reasonable to expect the applicant to have made an application within the two-year period’ of the date of the incident (2008 Scheme, para. 18(b)).  If it was reasonable to expect the applicant to apply within two years, the Tribunal was required to refuse the appeal.  If it was not reasonable to expect the applicant to apply within two years, the second stage required the Tribunal to consider whether to exercise their discretion by waiving the time limit.  In determining whether to exercise that discretion, the periods during which the applicant might reasonably have been expected to apply was a relevant, but not necessarily decisive factor.  As a general principle, the longer the period of delay, the stronger the reasons for waiver will need to be (R (MJ) v First-tier Tribunal (supra)). 

[49]      The Tribunal had not approached the matter by considering these two stages discreetly, but rather examined the petitioner’s practical ability to apply throughout the whole period running from the domestic assault, without differentiating between the first two years and the rest of that period.  However, any deviation from the two-stage approach was immaterial.  In view of the substantial time that had elapsed, it was inconceivable that the Tribunal would waive the time limit if the applicant could reasonably have been expected to have applied significantly earlier than she did. 

[50]      The Tribunal had not made any material mistake as to the evidence led.  The Tribunal had given adequate reasons for its decision.  It was not necessary for the Tribunal to refer in its reasons to every aspect of the evidence led, and it was to be assumed, unless there was compelling reason to the contrary, that the Tribunal had taken account of all the evidence (Henderson v Foxworth Investments 2014 SC (UKSC) 203).  Insofar as the parties were at odds as to the terms of the oral evidence, the Tribunal’s statement was supreme (Aberdeen Steak Houses Group plc v Ibrahim [1988] ICR 550).  The Tribunal’s handwritten reasons, written on the day of the hearing, referred to the psychiatric history set out by Dr Anderson in her report (Tribunal bundle, pages C340 – 342).  The Tribunal had acted reasonably in approaching the matter by reference to the history prepared by the psychiatrist, upon whose opinion particular reliance had been placed by the petitioner.  If certain features of the petitioner’s psychiatric history had not appeared to merit specific reference in the psychiatrist’s report, it was reasonable for the Tribunal not to place weight on such matters either.  The ability of the petitioner to pursue her studies, to work as a tutor and to work as a writer were relevant to the Tribunal’s assessment as to the extent to which her mental health limited her abilities.  That, in turn, was relevant to her ability to make a claim for criminal injuries compensation.  The Tribunal was not bound to accept the view of Dr Anderson, nor was it required to decide the appeal in the petitioner’s favour, even if it had accepted that the petitioner was to some extent ‘compromised’ in her ability to seek compensation.  The Tribunal was entitled to reach the decision that it did.  Ultimately, in light of the evidence led and the passage of time, no reasonable Tribunal could have decided otherwise. 

[51]      The evidence before the Tribunal was that the petitioner had made a complaint to the police and that the person who had assaulted her had been interdicted.  There had been no evidence led that the interdict, or any measure of like effect, had been ordered by the district court.  The Tribunal was entitled to infer that the interdict had been sought by the person who apprehended harm, viz. the petitioner.  As a matter of civil law, no one else could have been entitled to do so.  As a matter of criminal law, a criminal court could not pronounce interdict.  The importance placed on the petitioner’s ability to make an application at particular passages of her life, whether within the first five years after the domestic assault or two years after attaining eighteen years of age, was a matter for the Tribunal.  If the Tribunal had erred in focussing on those periods, the error was favourable to the petitioner.  In any event, in light of the passage of time and the evidence led, the decision of the Tribunal was inevitable.

 

Decision
[52]      The starting point in consideration of this petition is inevitably the extraordinary length of time that has passed between the incident giving rise to the application, and the application for compensation being made.  The incident occurred on 4 November 1976, and the application was lodged on 20 August 2010, some 33 years later.  That being so, on any view, the application was made very late. 

[53]      Whilst the primary question for the Tribunal must be whether the conditions set out in paragraphs 18(a) and (b) are generally met, including whether it would have been reasonable to expect an application to have been made within the two-year period, it remains the case that applications nonetheless require to be made “as soon as possible” after the incident in question.  That requirement is not qualified by, and does not fly off in circumstances otherwise justifying waiver of the two-year time limit.  In other words, as observed by the Upper Tribunal in MJ v First-tier Tribunal and Criminal Injuries Compensation Authority (No 3) [2015] AACR 3 (at para 30), the extent of any delay in submitting an application following the incident, and indeed following expiry of the two-year time limit where the conditions in paragraph 18(a) and (b) are otherwise satisfied, will be a relevant factor to be taken into account in the exercise of discretion under paragraph 18 as a whole.  Whilst the extent of any delay is not necessarily determinative, it is inevitably the case, as set out in MJ (supra) and submitted by the respondent in the present case, that as a general principle, the longer the delay in making a claim, the stronger the reasons for waiver will likely need to be. 

[54]      With regard to the disputed points of evidence arising in this case, it should be observed in the first instance that the respondent’s submissions are well founded to the extent that the court is not in a position, absent agreement, to call into question the accuracy of the Tribunal’s record of evidence (Aberdeen Steak Houses v Ibrahim [1988] ICR 550) or, indeed, to question whether the whole evidence that was laid before the Tribunal has been taken into account, absent compelling reason to the contrary (Henderson v Foxworth Investments 2014 SC (UKSC) 203, Lord Reed at para [48]).  The petitioner’s complaints are set out fully above, and no such compelling reason has been identified in the present case.  Otherwise, insofar as the parties agree as to the nature of the oral evidence presented before the Tribunal, notwithstanding what is recorded in the Tribunal’s reasons, no material justification has been put forward for interfering with the Tribunal’s decision. 

[55]      The original reasons given by the Tribunal disclose a variety of factors which, taken together, justified the conclusion that the petitioner was “functioning at a high level” in the years immediately following the 1976 incident, and therefore ought to have lodged an application for compensation within two years, at least of attaining majority (see infra).  Those factors included, but were by no means limited to, the fact that the petitioner had been able to continue working after the incident, and the assumption that the petitioner had been capable of obtaining interdict against BT around that time.  The precise nature of the petitioner’s education and employment around that time, as now set out by the petitioner, do not paint a materially different picture.  Likewise, in the absence of evidence to the contrary, the Tribunal was entitled to assume that the petitioner had obtained the interdict referred to by her in evidence, and it is insufficient for the petitioner to seek to clarify or improve upon the evidence given by her ex post facto.  In reaching its conclusion, the Tribunal also took account of the fact that the petitioner probably knew of the existence of the criminal injuries compensation scheme.  The petitioner seeks to emphasise that, for the other reasons she suggests, she was unable to make an application.  However, those factors do not detract from the fact that the Tribunal was entitled to have regard to the petitioner’s likely knowledge of the scheme. 

[56]      With particular regard to the petitioner’s further evidence of her mental health issues arising before 1995, the original reasons disclose that the Tribunal’s principal concern was that the petitioner’s mental health problems in “serious” or “significant” form did not arise until 1995, “long after the second incident”.  The Tribunal was entitled to reach that conclusion on the evidence before it, as set out more fully above, and in particular on the basis of Dr Anderson’s report.  The Tribunal cannot be criticised for relying on the terms of Dr Anderson’s report, at least to the extent of setting out what must be assumed to be the relevant and significant features of the petitioner’s medical history.  The copy report of Professor Bond (Tribunal bundle, page C111), apparently produced in connection with the petitioner’s accident in 1995, is incomplete. 

[57]      With regard to the petitioner’s evidence as to her reticence to talk about the 1976 incident in light of the apparent views of her family, this is simply not sufficient to justify the petitioner’s prolonged silence as regards the making of an application.  The present case, although involving a young person, is not of a type where the Tribunal could be expected to consider the continuing effects of the incident itself to justify delayed reporting, such as may be the case in respect of historic child sexual abuse (see, eg, JM v Advocate General for Scotland [2013] CSOH 169, Lord Boyd at para [20]).  It cannot be said that the Tribunal failed to have proper regard to the petitioner’s evidence in this regard, such as it was.

[58]      In the absence of clear medical evidence to the contrary, the Tribunal was entitled to conclude that the petitioner’s circumstances pertaining prior to 1995 did not explain her failure to make an application for compensation during that period.  Further, and in any event, the Tribunal were entitled to conclude that the petitioner’s circumstances, and in particular her mental health, were not sufficient to justify the further delay in submitting an application until 2010.  Not only was the Tribunal not bound to accept the conclusion of Dr Anderson in this regard, but Dr Anderson’s conclusion in fact does little to assist the Tribunal in identifying precisely when the petitioner was or was not capable of making an application.  That may not be surprising, given that Dr Anderson did not consult with the petitioner until relatively recently in the history of this case. 

[59]      The Tribunal was entitled to take account of the petitioner’s whole circumstances in order to ascertain the point at which an application ought reasonably to have been made, although late, in all the circumstances.  Further, the Tribunal was entitled to conclude, in those circumstances, that the petitioner had not discharged the burden placed on her in terms of paragraph 19 of the 2008 Scheme to make out a case for waiver of the time limit.  There is nothing disclosed in the Tribunal’s reasoning to suggest that the Tribunal’s ultimate conclusion was not justified by the evidence before it.  In light of the evidence and the passage of time no reasonable Tribunal could have decided otherwise. 

[60]      The Tribunal plainly took account of the petitioner’s whole circumstances to the date of the appeal hearing.  The petitioner’s criticisms of the Tribunal’s approach and the Tribunal’s decision are without substance.

[61]      In the whole circumstance, having regard to the submissions of counsel, the documents before me, and the authorities produced, I am satisfied that the respondent’s submissions are well founded.  There was no material error of law on the part of the First-tier Tribunal.

[62]      Accordingly, I shall sustain in the respondent’s second plea-in-law, repel the petitioner’s plea-in-law and refuse the orders sought in the petition.  I shall reserve meantime the question of expenses.